Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

".....Here, the evidence adduced at the hearing demonstrated that despite the fact that the child had participated in therapy for several months in an effort to foster a relationship with his father, the child remained vehemently opposed to any form of visitation with the father. The Family Court was entitled to place great weight on the child's wishes, since he was mature enough to express them (see Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Matter of Luo v Yang, 103 AD3d 636). The court's finding that further attempts to compel the child, who was then 13 years old, to engage in visitation would be detrimental to the child's emotional well being has a sound and substantial basis in the record and, thus, should not be disturbed (see Matter of Rosenblatt v Rosenblatt, 129 AD3d 1091; Matter of Lyons v Knox, 126 AD3d 798, 799; Matter of Luo v Yang, 103 AD3d at 637; Matter of Krasner v Krasner, 94 AD3d 763, 764).

However, contrary to the conclusion of the Family Court, the evidence adduced at the hearing justified a suspension of the father's obligation to make future child support payments (see Rodman v Friedman, 112 AD3d 537; Ledgin v Ledgin, 36 AD3d 669, 670). The forensic evaluator testified that there was a "pattern of alienation" resulting from the mother's interference with a regular schedule of visitation. The evaluator was unable to complete her evaluation because the mother refused to consent to the evaluator's request to speak with mental health providers or school officials, and the child did not appear for his interview. Moreover, after the father's last visit with the child, which occurred on February 7, 2010, the father continued to go to the exchange location on visitation days for several months. On one occasion, the mother and child appeared, but the mother said the child would not come out of the car. On the other occasions, neither the mother nor the child appeared, nor did the mother communicate with the father. The father was never told about the child's medical needs or that the child had been hospitalized until after the fact, nor was he advised of any information about the child's school or school events. Further, the record reflects that the mother, who represented herself before the Family Court, assumed an inappropriately hostile stance toward the father and witnesses who testified in his favor. The Family Court noted in its decision that the mother stated "many times, that she will never allow [the father] to see the subject child and that she would do whatever it takes to keep the subject child away" from him.

Under these circumstances, it is appropriate to suspend the father's current child support obligations (see Matter of Thompson v Thompson, 78 AD3d 845)."

Tuesday, November 24, 2015

Once again, today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:

"Volunteer Lawyers Project

What is the Volunteer Lawyers

Project?

Attorneys
are encouraged to volunteer to provide free legal assistance to the
poor in Nassau County through the Volunteer Lawyers Project. NCBA
partners with the Nassau/Suffolk Law Services Committee to support VLP,
which helps maximize the quantity and quality of pro bono assistance
provided for the county's low-income community.

What programs are part of the VLP?Volunteer
attorneys handle a wide array of cases including matrimonial
matters, individual bankruptcy, personal injury and negligence defense,
estate matters, release of accounts blocked by judgment creditors, and
various other civil matters.

• The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

• The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

• The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

How does it work?

An
attorney based at VLP’s offices in Hempstead conducts client intake
interviews and refers clients to appropriate volunteer attorneys. The
VLP attorney also recruits and trains volunteer attorneys to handle
cases."

Tuesday, November 17, 2015

Bennett v St. John's Home, 128 AD3d 1428 (4th Dept. 2015) - sometimes the most interesting part of a decision is the dissent:

"Whalen, J. (dissenting). I respectfully dissent because I disagree with the majority's conclusion that plaintiff waived his contention that defendants' motion for summary judgment should have been denied as untimely. I would therefore reverse the order and judgment, deny defendants' motion, and reinstate the complaint.

Where, as here, Supreme Court does not schedule a deadline for filing motions for summary judgment, "such motion shall be made no later than one hundred and twenty days after the filing of the note of issue, except with leave of court on good cause shown" (CPLR 3212 [a];see O'Brien v Bainbridge, 109 AD3d 1206, 1208 [2013];Jones v Town of Le Ray, 28 AD3d 1177, 1178 [2006]). The moving party has the burden of demonstrating good cause, and "[n]o excuse at all, or a perfunctory excuse, cannot be 'good cause' " (Brill v City of New York, 2 NY3d 648, 652 [2004];see LoGrasso v Myer, 16 AD3d 1089, 1089-1090 [2005]). In that context, CPLR 3212 (a) "requires a showing of good cause for the delay in making the motion—a satisfactory explanation for the untimeliness—rather than simply permitting meritorious, nonprejudicial filings, however tardy" (Brill, 2 NY3d at 652;see O'Brien, 109 AD3d at 1208).

The Court of Appeals has explained that requiring the movant to show good cause serves "the purpose of the amendment, [i.e.,] to end the practice of eleventh-hour summary judgment motions" (Brill, 2 NY3d at 652), and that "statutory time frames . . . are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored" (Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]).

Here, the court did not set a deadline for motions, and the note of issue was filed on April 20, 2012, which meant that all summary judgment motions were to be filed within 120 days and no later than August 18, 2012 (seeCPLR 3212 [a]). The motion for summary judgment was not filed until June 28, 2013, which is just over 10 months beyond the 120-day limit (see O'Brien, 109 AD3d at 1208). Defendants' moving papers did not include any explanation for the delay, and the reason set forth by the court during proceedings on May 13, 2013 was simply that defendants may have a meritorious motion and, thus, that determining the motion might simplify the issues at trial, which is the same excuse that was rejected by the Court of Appeals inMiceliandBrill(see Miceli, 3 NY3d at 727;Brill, 2 NY3d at 652-653). I therefore conclude that the motion should not have been entertained by the court.

In my view, the fact that the parties entered a stipulation to allow defendants to make a late motion for summary judgment does not alter the above analysis inasmuch as "[the] parties' stipulation is insufficient to excuse [a] delay" (Coty v County of Clinton, 42 AD3d 612, 614 [2007]). "Unless public policy is violated, the parties are free to chart their own procedural course, and may fashion the basis upon which a particular controversy will be resolved" (Loretto-Utica Props. Corp. v Douglas Co., 226 AD2d 1058, 1059 [1996] [internal quotation marks omitted];see Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]). However, as articulated by the legislature and the Court of Appeals, it is public policy to strictly enforce the 120-day limit for summary judgment motions in the absence of leave of court on good cause shown. CPLR 3212 (a) was amended by the legislature with "the purpose . . . to end the practice of eleventh-hour summary judgment motions" (Brill, 2 NY3d at 652), which the Court of Appeals described as a "sloppy practice threatening the integrity of our judicial system" (id.at 653). "[T]he Court of Appeals [has] clearly indicated that the 120-day statutory time frame contained in CPLR 3212 (a) is a strict requirement 'to be taken seriously by the parties' " (Coty, 42 AD3d at 614, quotingMiceli, 3 NY3d at 726) and "must be 'applied as written and intended' " (id., quotingBrill, 2 NY3d at 653). Although parties may stipulate away some statutory rights (see Mitchell, 61 NY2d at 214), under CPLR 3212 (a) and the decisions of the Court of Appeals inBrillandMiceli, "the court has the exclusive authority to extend the statutory deadline; mutual agreement of the parties without court approval will not suffice" (Coty, 42 AD3d at 614), and the court may not approve of the delayed motion without a showing of good cause (seeCPLR 3212 [a];Brill, 2 NY3d at 652). Thus, contrary to the majority's position, litigants cannot waive the statutory requirement that good cause be shown in order to permit the late filing of a motion pursuant to CPLR 3212, and the statute does not permit courts to accept a stipulation of the parties "in advance of the[*3]motion" where there is no showing of good cause. I therefore conclude that, while a court may accept a late motion for summary judgment "pursuant to both a stipulation and the court's own order,upon a showing of'good cause'" (Jim Beam Brands Co. v Tequila Cuervo La Rojena, S.A. De C.V., 85 AD3d 556, 556-557 [2011] [emphasis added]), a stipulation alone is not sufficient to extend the deadline imposed by the statute (see Coty, 42 AD3d at 614).

As discussed above, the parties' stipulation in the present case was accompanied by acquiescence of the court, but without any showing of good cause for the delay. In my view, "[i]f this practice is tolerated and condoned, the ameliorative statute is, for all intents and purposes, obliterated" (Brill, 2 NY3d at 653). The courts should heed the admonition of the Court of Appeals and not countenance such statutory violations (see id.)"

Monday, November 16, 2015

The American Academy of Matrimonial Lawyers is co-distributing the Telly Award winning custody film, TALK TO STRANGERS"

"The 25-minute dramatic film tells the story of a sister and her younger brother struggling to navigate the child custody evaluation process typically used in American family courts. It is being used by divorce professionals throughout the country to remind parents and counsel of the consequences for children when parents give up on cooperative parenting."

Friday, November 13, 2015

This came up in an email discussion - and reminded me of the movie Poltergeist. What is the Seller's duty to disclose the fact that, for example, there was a murder in the home, a contagious disease....or that the house is build on a burial ground and ghosts appear?

In 1995, New York State passed Section
443-a
of
the Real Property Law which
makes
the
failure
to
disclose
disease-type
and
crime/death-type
impacts
not
a
material
defect.
Disease-type
impacts
protected
under
the
statute
are
the
AIDS
or HIV
status
of
a
prior
occupant,
or
any
other
disease
not
transmitted
through
occupancy
of
a
dwelling. The
crime/death-type
impacts
under
the
statute
are
"a
homicide,
suicide,
or
other
death
by
accidental
or
natural
causes,
or
any
crime
punishable
by
a
felony."'
It also
prohibits
causes
of
action
against
owners,
occupants,
and
their
agents
for
failing
to
disclose
psychological
impacts.
Real
estate
agents
and
brokers
are
also
immune
from
disciplinary
action.

However, there is a procedure
for
buyers
to
make
a
written
inquiry
if
psychological
impacts
are
important
to
their
decision
to
buy. The
buyer
or
buyer's
agent
must
provide
the
written
inquiry
to
the
seller
or
the
seller's
agent.
The
seller
may
choose
whether
or
not
to
respond.
If
the
seller
chooses
to
respond,
the
seller
or
seller's
agent
must
provide
the
response
to
the
buyer
or
the
buyer's
agent.

So when representing a buyer - make the inquiry pursuant to RPL Section 443-a. But I don't think it covers ghosts...here it is in its entirety:

"1. Notwithstanding any other provision of law, it is not a material defect or fact relating to property offered for sale or lease, including residential property regardless of the number of units contained therein, that: (a) an owner or occupant of the property is, or was at any time suspected to be, infected with human immunodeficiency virus or diagnosed with acquired immune deficiency syndrome or any other disease which has been determined by medical evidence to be highly unlikely to be transmitted through occupancy of a dwelling place; or (b) the property is, or is suspected to have been, the site of a homicide, suicide or other death by accidental or natural causes, or any crime punishable as a felony. 2. (a) No cause of action shall arise against an owner or occupant of real property, or the agent of such owner or occupant, or the agent of a seller or buyer of real property, for failure to disclose in any real estate transaction a fact or suspicion contained in subdivision one of this section. (b) Failure to disclose a fact contained in subdivision one of this section to a transferee shall not be grounds for a disciplinary action against a real estate agent or broker licensed pursuant to this article. (c) As used in this section, the terms "agent", "buyer" and "seller" shall have the same meanings as such terms are defined in section four hundred forty-three of this article. 3. Notwithstanding the fact that this information is not a material defect or fact, if such information is important to the decision of the buyer to purchase or lease the property, the buyer may, when negotiating or making a bona fide offer, submit a written inquiry for such information. The buyer or the agent of the buyer shall provide the written request to the seller's agent or to the seller if there is no seller's agent. The seller may choose whether or not to respond to the inquiry. The seller's agent, with the consent of the seller and subject to applicable laws regarding privacy, shall report any response and information to the buyer's agent or to the buyer if there is no buyer's agent. If there is no seller's agent, the seller shall inform the buyer's agent, or the buyer if there is no buyer's agent, whether or not the seller chooses to provide a response. 4. This section shall preempt any local law inconsistent with the provisions of this section."

Thursday, November 12, 2015

On October 28,
Gov. Cuomo signed into law a bill designed to clear up confusion that has developed over how spousal maintenance is treated when calculating child support.
The bill, provides that spousal maintenance that is actually paid must be added to the recipient spouse's income, provided that the order contains an adjustment to take effect if the maintenance order is terminated.
The new law contains a provision that where spousal maintenance is deducted from a payor's income, the order must have a provision automatically adjusting the payor's child support amount when maintenance payments end.

Prior court rulings have held that durational spousal maintenance payments should not be deducted from the payor's income unless the order specifies a mechanism for an adjustment if maintenance stops.

The new bill takes effect in 90 days and reflects that state and federal tax laws allows payor spouses to deduct maintenance payments from their taxes in recognition that the maintenance is income to the recipient and not money that is available any longer for use by the payor.

Wednesday, November 11, 2015

My father Albert Probstein served in the Pacific in WW2. This Saturday, I will serve as a volunteer lawyer at a free Veterans Legal Clinic:

"The Maurice A. Deane School of Law will host a free Veterans Legal Clinic on Saturday, November 14, 2015. The clinic is open to all veterans and offers a free consultation with attorneys who specialize in VA benefits and claims, family law, social security disability, employment, USERRA, housing, bankruptcy, debtor/creditor matters, landlord-tenant disputes, elder law, tax, wills, estates, Medicare and Medicaid, and more. Appointments are required.

The clinic is organized by the Hofstra Veterans Legal Assistance Project. For more information or to schedule a free consultation, contact the Hofstra Veterans Legal Assistance Project at VLAP@hofstra.edu or call 516-463-7302.

This is the fifth one-day clinic hosted by the Veterans Legal Assistance Project. To date, VLAP has provided more than 200 military veterans with free legal services.

Tuesday, November 10, 2015

Many of our debtor clients ask the question: if I owe the IRS taxes and I'm collecting Social Security benefits or going to collect Social Security benefits in the future, can the IRS levy my Social Security payments? Unfortunately for delinquent taxpayers, through the Federal Payment Levy Program (FPLP), 15% of a taxpayer's Social Security benefits may be levied to pay delinquent tax debt. However, certain other federal benefits, such as lump sum death benefits, Supplemental Security Income (SSI) and benefits paid to children are excluded from the FPLP levy.

What about student loans? If a debtor defaults in the payment of federally guaranteed student loans, then the IRS may levy on the debtor's tax refunds and apply those monies to the balance of the student loans. Additionally, if a debtor defaults on federally insured outstanding student loans, the government can take some federal benefit payments (including Social Security retirement and disability benefits, but not SSI) as reimbursement for student loans, but not the full amount (see below).

With respect to student loan defaults, the government cannot take any amount that would leave you with benefits less than $9,000 per year or $750 per month. And it cannot take more than 15% of your total benefits for either student loan defaults or delinquent taxes.

If you have questions about the federal government's powers to seize your benefits for the payment of delinquent taxes or publicly guaranteed student loans, please contact Jim Shenwick.

Monday, November 9, 2015

"The Supreme Court properly denied that branch of the defendant's motion
which was to direct the plaintiff to undergo a psychiatric evaluation as a
condition of continued visitation with the parties' child. A court hearing a
pending proceeding or action involving issues of custody or visitation may
properly order a mental health evaluation of a parent, if warranted, prior
to making a custody or visitation determination (see Family Ct Act § 251[a];
Zafran v. Zafran, 28 AD3d 753, 756; see also Bibas v. Bibas, 62 AD3d 924).
In addition, a court may properly direct a party to submit to counseling or
treatment as a component of a visitation or custody order (see Matter of
Smith v. Dawn F.B., 88 AD3d 729, 730; Matter of Lane v. Lane, 68 AD3d 995,
997–998; Matter of Thompson v. Yu–Thompson, 41 AD3d 487, 488; Matter of
Grassi v. Grassi, 28 AD3d 482, 483; Jordan v. Jordan, 8 AD3d 444, 445;
Matter of Williams v. O'Toole, 4 AD3d 371, 372).

However, "a court may not order that a parent undergo counseling or
treatment as a condition of future visitation or reapplication for
visitation rights" (Matter of Smith v. Dawn F.B., 88 AD3d 729, 730; see
Matter of Welch v. Taylor, 115 AD3d 754, 756; Matter of Torres v. Ojeda, 108
AD3d 570, 571; Matter of Grassi v. Grassi, 28 AD3d 482, 483). The rationale
underlying this rule is that "a court may not properly delegate to mental
health professionals the ultimate determination of whether a parent will be
awarded visitation rights," a determination that is properly made by the
court (Zafran v. Zafran, 28 AD3d at 757). Therefore, the Supreme Court
properly denied that branch of the defendant's motion which was to direct
the plaintiff to undergo a psychiatric evaluation as a condition of
continued visitation with the parties' child."

Wednesday, November 4, 2015

"The parties are the parents of four children, born in 2005, 2006, 2008 and
2009. Since 2010, petitioner (hereinafter the mother) has had sole custody
of the children pursuant to an order that permitted respondent (hereinafter
the father), who was incarcerated, to have telephonic contact with the
children. In 2012, after a fact-finding and Lincoln hearing, Family Court
determined that the telephone calls were emotionally distressing to the
children and granted the mother's petition to modify the order by limiting
the father's contact to monthly, monitored written communication with the
two oldest children.FN1 Ten months later, the father commenced this
proceeding to modify the 2012 order, seeking prison visitation and
reinstating telephonic contact with the two oldest children. Family Court
granted the mother's motion to dismiss the petition for failure to allege a
change in circumstances. The father now appeals .FN2

We affirm. As the party seeking to modify a recent, existing visitation
order, "the father was required to provide sufficient evidence in support of
the petition to show that there had been a change in circumstances
demonstrating a real need for a change to ensure the children's best
interests" (Matter of Hall v. Hall, 61 AD3d 1284, 1285 [2009]; see Matter of
Ruple v. Cullen, 115 AD3d 1123, 1123 [2014]). The only changes in
circumstances alleged in the father's petition were that he had received a
certificate for attending substance abuse meetings and positive inmate
progress reports and completed vocational training, and that his request for
the children to participate in a prison program had been denied. Even
accepting these allegations as true, they do not set forth a change in
circumstances that would warrant the relief sought (see Matter of Januszka
v. Januszka, 90 AD3d 1253, 1254 [2011]). The bare fact that the father had
availed himself of prison services did not require a reexamination of the
childrens' best interests, particularly where the changes alleged do not
address their emotional reaction to telephonic communication from the
father, which was the reason for limiting contact in the 2012 order.
Moreover, although the father was allowed monthly communication with the two
oldest children, he had written to them on only two occasions in the 10
months that had elapsed between the 2012 order and this proceeding. Given
the circumstances, Family Court did not err in dismissing the petition
without an evidentiary hearing (see Matter of Marquis v. Washington, 86 AD3d
753, 754 [2011]; Matter of Heater v. Heater, 81 AD3d 1017, 1017 [2011]).

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/